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Reminder: You have a right to photograph and film the police

An Al Jazeera television crew, covering demonstrators protesting the shooting death of teenager Michael Brown, scramble for cover as police fire tear gas into their reporting position on August 13, 2014 in Ferguson, Missouri. Photo: Scott Olson/Getty Images

Ishmael N. Daro

Published: August 14, 2014 - 10:55 AM

Updated: August 14, 2014 - 2:00 PM

The images coming out of Ferguson, Missouri, over the last week have shown a police department apparently incapable of de-escalating a tense situation, reaching instead for tear gas, rubber bullets and other heavy-handed tactics in response to mostly peaceful protests.

But that’s the thing: we are actually seeing images.

In a time of ubiquitous smartphones and other recording devices, it’s next to impossible to hide what appears to be a militarized police force run amok.

“The message of all of this was something beyond the mere maintenance of law and order,” Jelani Cobb wrote for the New Yorker following the fourth night of protests in Ferguson, concluding the response by police was “a raw matter of public intimidation.”

That intimidation has not been limited to the residents of Ferguson, protesting the shooting of an unarmed teenager on Aug. 9 by a police officer whose identity has been withheld. Increasingly, journalists are also coming in for harassment.

Wednesday night, Washington Post reporter Wesley Lowery and Ryan Reilly of the Huffington Post were arrested and later released without charge, apparently for questioning why they were being told to vacate a McDonald’s restaurant where they had set up a makeshift office from which to report on the violence. As Lowery pulled out his phone to document the heavily-armed police officers ushering them out, he was told to “stop recording.” He said he was subsequently grabbed by several officers as he tried to exit the restaurant, and later slammed against a soda machine.

Numerous other people trying to document police actions, be they journalists or average residents, were told not to take photos and some officers have reportedly concealed their badge numbers from people who have asked them to identify themselves.

Recording law enforcement in public is not a crime, and you do not have to comply with a request to stop filming or to delete your photos and videos. As long as you are doing so without interfering with police work, “you have the right to capture any image that is in plain view,” the American Civil Liberties Union says on its website. (Occasionally, wiretapping laws prohibit recording private conversations, which can include conversations in public.)

In an op-ed published in Canada.com last year, the free expression group PEN Canada made the same point about Canadian law:

“In particular, we wish to state that it is not a criminal offence for individuals to photograph or film police officers as they go about their duties, and that police officers are not allowed to confiscate a person’s camera or recording equipment (including phones), force them to delete images, or otherwise prevent them from taking photographs or filming in public places.”

A demonstrator confronts a riot policeman during a protest to demand free and good quality education and a call for a Constituent Assembly, in Santiago, on March 22, 2014. ( MARTIN BERNETTI/AFP/Getty Images)

Regardless of these legal protections, though, it has become alarmingly common for law enforcement to impinge on these rights, which not only limits journalists trying to do their jobs but also the public that may rely on them to know what’s happening on the ground.

The value of such photo and video evidence has been proven over and over again. Consider the Rodney King beating in 1991, the shooting death of Toronto teenager Sammy Yatim in 2013, or the death of Eric Garner in New York last month. In all these cases, video evidence made the crucial difference in understanding what happened, and preventing the violence from becoming just another statistic in the newspaper.

The vast majority of police officers are undoubtedly good people trying to do a difficult job, but it’s clear that more scrutiny of their actions is better for everyone. In the city of Rialto, California, the police department saw an 88 per cent decline in complaints against officers after half the force started wearing small cameras as part of their uniforms. The use of force had also declined by 60 per cent a year after the program launched.

Initially skeptical, police forces across North America are moving to adopt the same practice — in part because it helps inoculate officers against spurious charges of brutality and misconduct. A Toronto police report released in July following the Sammy Yatim shooting also recommended the expanded use of body-worn cameras.

What is clear from the police overreaction in Ferguson is that law enforcement cannot be allowed to act with impunity, and one of the most effective checks on unwarranted aggression is the simple act of hitting record. It’s not only a right for citizens to do so; it may be a duty.